New York Times

Order Favors the Administration on Migrant Program

December 9 , 2017

by Adam Liptak

WASHINGTON — The Trump administration may temporarily shield documents concerning its decision to end a program that protected some 800,000 young, undocumented immigrants from deportation, the Supreme Court ruled Friday in a brief, unsigned order. The court said it would consider the matter further, and it set an expedited briefing schedule.

The vote was 5 to 4. Justice Stephen G. Breyer, writing for the court’s four-member liberal wing, issued a 10-page dissent.

The dispute over the documents arose in five consolidated lawsuits in California that accused administration officials of acting unlawfully when they abruptly rescinded the program, known as Deferred Action for Childhood Arrivals, or DACA. The plaintiffs include four states — California, Maine, Maryland and Minnesota — and Janet Napolitano, the president of the University of California. As secretary of homeland security in the Obama administration, Ms. Napolitano signed the document that established the program in 2012.

Judge William H. Alsup, of the Federal District Court in San Francisco, ordered the administration to turn over internal documents concerning its reasons for canceling the program. A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit rejected the administration’s request to block Judge Alsup’s order, with the majority saying that the few documents provided by the administration had been inadequate in light of the magnitude of the decision to end the program.

“Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible,” Judges Kim McLane Wardlaw and Ronald M. Gould wrote in a joint decision.

“We are not unmindful of the separation-of-powers concerns raised by the government,” the judges wrote. “However, the narrow question presented here simply does not implicate those concerns.”

In dissent, Judge Paul J. Watford said it was generally up to the administration to decide what documents to present to justify its decision.

“I understand why the district court ordered the Department of Homeland Security to provide a more fulsome administrative record,” he wrote. “The agency’s decision to rescind DACA will profoundly disrupt the lives of hundreds of thousands of people, and a policy shift of that magnitude presumably would not have been made without extensive study and analysis beforehand.”

“But the desire for greater insight into how D.H.S. arrived at its decision is not a legitimate basis for ordering the agency to expand the administrative record, unless the plaintiffs make a threshold factual showing justifying such action,” Judge Watford wrote.

In an emergency application to the Supreme Court, Solicitor General Noel J. Francisco asked the justices to step in. He said Judge Alsup’s order was an “extraordinary departure from bedrock principles governing judicial review of federal agency action,” given the practical burdens it imposed and in its intrusion into the administration’s internal deliberations.

In an unusual move, Judge Alsup filed a statement in the Supreme Court disputing the government’s assertions about the scope of his order. The government’s brief, he told the justices, “leaves the incorrect impression that the district court endorsed unfettered discovery toward the defendants.”

Judge Alsup also urged the justices not to interfere with other aspects of the case even if they allowed the government to withhold the documents. The program is set to end in March, he said, requiring a prompt decision.

In his dissent, Justice Breyer wrote that it was very unusual for the Supreme Court to become involved in disputes over the production of documents.

“The court today abandons its practice of nonintervention in this kind of discovery-related dispute,” he wrote. “In addition to disrupting the progress of this litigation, I fear that the court’s decision to intervene here means we will be asked to address run-of-the-mill discovery disputes in many other matters, certainly when the government is involved and potentially when it is not involved.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the dissent, which also questioned the government’s contention that producing the requested documents would impose a crushing burden.

“The government complains that it must review 21,000 documents as potentially part of the administrative record,” Justice Breyer wrote. “But the underlying agency action here is important, and that is by no means an unusually large number of documents; administrative records often contain hundreds of thousands of documents.”

Justice Breyer wrote that there was good reason for Judge Alsup to review and to consider the requested documents.

“Effective review,” Justice Breyer wrote, “depends upon the administrative record containing all relevant materials presented to the agency, including not only materials supportive of the government’s decision but also materials contrary to the government’s decision.”